Dladla v City of Johannesburg, (2017) ZACC 42
The lockout and family separation rules of a temporary emergency housing accommodation provided by the city of Johannesburg were held to violate constitutional rights to dignity, privacy, and freedom and security of the person.
This case grew out of the 2011 judgment in Blue Moonlight, where the Constitutional Court of South Africa held that municipalities have a constitutional obligation to provide temporary emergency accommodation to all evictees who would be rendered homeless. The Court ordered the city of Johannesburg to provide temporary accommodation to those facing eviction from their residence in a commercial building on Saratoga Avenue. The city contracted with Metropolitan Evangelical Services (MES) to provide the temporary accommodation at the Ekuthuleni Overnight/ Decant Shelter. The applicants in this case, 11 evictees who were moved into the shelter, challenged two of the shelter rules. The first, the lockout rule, forbade residents from accessing the shelter during the day and from leaving after 20h00. The second, the family separation rule, mandated separate dormitories for males and females, thereby separating heterosexual couples, and children over 16 from caregivers of the opposite sex.
The lockout rule had an adverse effect on the applicants who worked nights and needed to be able to access the shelter during the day to rest. It also put those who were unemployed in danger by leaving them on the streets during the day. Due to the oppressive rules, some of the shelter residents even moved out, even though they had no alternative accommodation.
Furthermore, the rules disproportionately impacted women, according to an amicus by the Centre for Applied Legal Studies (CALS). The family separation rule perpetuated gender stereotypes by exclusively imposing on women the duty of taking care of minor children at night.
The applicants argued that the city did not comply with the order in Blue Moonlight because the measures adopted were inconsistent with the right of access to adequate housing in section 26 of the South African Constitution. The applicants contended that the temporary housing provided by the city was inconsistent with the state’s obligation to take reasonable measures to progressively realise and give effect to the right adequate housing. They claimed the city admitted the restrictive rules were designed to force them back onto the streets. They also argued that the shelter rules infringed on their rights to dignity, freedom and security of the person, and privacy, enshrined respectively in sections 10, 12 and 14 of the Constitution.
The applicants won in the High Court, but the Supreme Court of Appeal reversed the decision. While the appeal Court acknowledged that the rules infringed on constitutional rights, they held that the infringement was reasonable. Further, they accepted the city’s argument that the range of the applicants’ rights was narrower than it would be with respect to permanent, rather than temporary, housing.
The Constitutional Court granted leave to appeal because of the constitutional matters the case raised as well as its wider public importance. The Court held that by providing temporary accommodation, the city had complied with the constitutional right to adequate housing, and thus focused its deliberations on the constitutional rights of dignity, privacy and freedom and security of the person alleged to have been infringed by the shelter rules.
The Center for Child Law amicus submission argued that the applicants were entitled to the full gamut of rights because the order in Blue Moonlight required they be given a home which is akin to permanent housing. The Court agreed with them, rejecting the city’s argument that the applicants were entitled to a narrower range of rights because of the temporary nature of the housing. The Court emphasized that the real issue was not whether the shelter constituted a home, but whether the shelter rules infringed constitutional rights guaranteed to everyone, regardless of where they were at a given time.
The Court held that both the lockout and separation rules impaired the applicants’ constitutional rights. By forcing them out onto the street during the day, the lockout rule was “cruel, condescending and degrading,” a clear violation of dignity, privacy and freedom of the person. The rule also impaired the applicants’ right to security of the person. This was demonstrated by the fact that several applicants were assaulted on the street while locked out of the shelter. Moreover, the Court noted that dignity necessarily entails the right to family life, which the family separation rule impinged.
Section 36 of the Constitution permits the limitation of rights only to the extent that such limitation is imposed by law of general application and is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. In the present case, the Court found that the rules resulting in the infringement of rights were not justified under section 36 of the Constitution, as they were part of a private agreement between the city and MES, and therefore the exact opposite of a “law of general application.”
On 1 December 2017, the Constitutional Court thus set aside the Supreme Court of Appeal order and replaced it with a ruling stating that the shelter rules infringed the applicants’ constitutional rights to dignity, freedom and security of the person, and privacy.
The Court ordered the city and MES to pay applicants’ litigation costs and refrain from enforcing the lockout and family separation rules for the duration of their stay at the shelter.
Socio-Economic Rights Institute of South Africa (SERI) (Argued the case)
Centre for Child Law (CCL)
A recognition of the interdependence and indivisibility of all rights, the Court’s judgment sets housing-related standards with respect to approximately 60,000 people living in Johannesburg’s inner city who need better and safer accommodation. The outcome is likely to have a positive impact on women, children and families living in shelters facing threats to their housing-related rights to privacy, dignity, family life, freedom and security. Commenting on the case, Nomzamo Zondo, the residents’ attorney and director of litigation at the Socio-Economic Rights Institute of South Africa (SERI) said, “The city has throughout treated our clients as less than human. …We hope that today’s judgment will result in a change in attitude towards poor and vulnerable people in Johannesburg’s inner city, and that the city …will begin to treat them with the care, respect and concern they deserve.”
For their contributions, special thanks to ESCR-Net members: Socio-Economic Rights Institute of South Africa (SERI) and the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.